Comcast: net neutrality should be less filling, taste great

Comcast is minding its manners in its response to the FCC's Open Internet …

The star ISP in the drama over the Federal Communications Commission's proposed Open Internet rules filed comments with the agency on that subject this week (as did every other stakeholder in this fight). Comcast comes to the task after having convinced a Federal court to overturn the FCC's order sanctioning it for P2P throttling.

You might think, then, that the cable giant's comments would be full of triumphant swagger. Quite the contrary, they're diplomatic and make recommendations based on what Comcast sees as the consensus among filers in this proceeding. That broad agreement, the company thinks, boils down to two major points—the agency should come up with Open Internet policies for everybody, and they should be as unobtrusive as possible.

"A diverse group of commenters [have] noted that the rules cannot focus too narrowly on Internet service providers as the only potential 'gatekeepers'," Comcast observes, "but should account for the interdependent nature of the Internet ecosystem."

And: "the Commission should not adopt an absolute ban on 'discrimination' . . . A more flexible and realistic standard, such as one that focuses on 'unreasonable and anticompetitive' discrimination, would give the Commission sufficient authority to monitor practices that create a meaningful risk to innovation and the openness on the Internet."

Them too

So who does Comcast suggest should share the burden of "gatekeeper" scrutiny? Akamai Technologies and Google make the list, although both, especially the latter company, very loudly protest this act of inclusion.

Akamai builds Content Delivery Networks—clumps of Web servers parked close to end users at the "Internet Edge." These streamline online performance for service providers like Google, which uses CDNs early and often—so much so that in 2008 the Wall Street Journal provoked an online riot by suggesting that Google's server co-location deals with ISPs put its oft-proclaimed net neutrality principles at risk.

But Akamai insists that it's out of the loop when it comes to the Open Internet questions. "Because Akamai neither owns transmission facilities nor offers Internet access service to consumers, it cannot be equated with the broadband Internet access service providers that are the subject of the [FCC's] Proposed Rules," the company's filing in this proceeding insists.

Comcast responds that it isn't so simple. Operating one of the biggest CDNs around, Akamai "is in a position to influence the user experience—and the 'prioritization' of content—as much as or more than others, including broadband ISPs," the ISP charges. Akamai's alleged gatekeeper role stems from the ways that its services "enable Web site owners to essentially pay for prioritized end-user access to their sites, and give preferential treatment to certain content in ways that are not transparent to the end user."

As for Google, the search engine "is in a unique position to take certain actions to promote its own revenue streams," says Comcast, and cites filings with the FCC warning that "if a website is not listed in Google's indexed search results, it is as if the website does not exist on the Internet."

Thus, the Commission "cannot claim to effectively address potential risks to 'an open Internet' unless it fully considers all the points in the Internet ecosystem where those risks reside, and adopts policies or rules that reach those points."

Unreasonable

But when it comes to doing so, Comcast wants the FCC to opt for what it sees as a minimal approach to the challenge. The cable ISP has a big problem with proposed Open Internet language like this: "A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner."

Sometimes discrimination is necessary, Comcast insists. But that rule would place an "absolute prohibition on any discrimination or differentiation, and fails to strike a balance between harmful and 'socially beneficial' discrimination," although the company failed to provide examples of the latter.

In any event, Comcast asks the FCC to consider language that "would mirror" Section 202(a) of the Communications Act's "unjust and unreasonable discrimination" standard. But the company doesn't actually want 202(a), since that comes out of the Communication Act's Title II "Common Carrier" toolbox (and the ISPs don't want to be called common carriers): "It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services."

But something adapted from the sentence might work, as in "unreasonable and anticompetitive discrimination" (Italics ours).

This would give the Commission "sufficient authority to monitor practices and business models that create a meaningful risk to innovation and openness on the Internet and to act swiftly and surgically to address those risks," argues Comcast, "while giving broadband ISPs and others in the Internet ecosystem the flexibility to innovate and experiment with technologies and business models."

The Get Google Club

Comcast's filing is full of positive references to the comments of other participants in this proceeding, including unions, public interest groups—even Google on more than one occasion. It still questions the FCC's authority to make rules, but Comcast's filing stands in stark contrast to Time Warner Cable's statement, which is laden with dark claims that the Commission's proposals would violate the First Amendment, and Verizon's filing, which insists that the FCC has no powers at all in this area—even to classify ISPs as common carriers.

But when it comes to Google, everybody's ready to pile on. "Proponents of regulation demonstrate a clear preference for unsupported speculation over actual concrete data," TWC notes. The statement continues:

But if the Commission endorses their hypotheses, it cannot limit them to broadband Internet access service providers. For instance, if "bottleneck control" were to be a trigger for regulation in this context, Google should be first in line to comply with any rules. Search—one of the most popular Internet applications—is more highly concentrated than broadband Internet access, with Google maintaining a dominant position that has enabled it to engage in a host of well-documented anti-competitive practices. One of Google’s few competitors, Foundem, recently filed comments with the Commission setting forth substantial data demonstrating how Google leverages its dominance in search to market its other services, favoring its own services over those of its competitors.

So what are the ISPs saying here? Perhaps this: The FCC has no authority to regulate the 'Net, but if it does, please at least give us the satisfaction of seeing Google come under the lash.

Or, as Comcast's filing seems to put it—just a little net neutrality please, but for everybody.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.